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If Auction sale notice was issued initially prior to the insertion of provision of Regulation 32A of IBBI Liquidation Process Regulations, 2016, Regulation 32A(4) cannot be pressed in service – Haravtar Singh Arora, Erstwhile promoter of James Hotel Vs. Navneet Gupta, Liquidator of James Hotel and Anr. – NCLAT New Delhi

Hon’ble NCLAT observed that submission is that under Regulation 32A sub-clause 4, auction did not take place within 90 days hence assets ought to have been sold under Clause ‘a’ to ‘d’. It is not denied that auction sale notice was issued initially prior to the insertion of provision of Regulation 32A, hence we are of the that in the auction, regulation 32A sub-clause (4) cannot be pressed in service.

If Auction sale notice was issued initially prior to the insertion of provision of Regulation 32A of IBBI Liquidation Process Regulations, 2016, Regulation 32A(4) cannot be pressed in service – Haravtar Singh Arora, Erstwhile promoter of James Hotel Vs. Navneet Gupta, Liquidator of James Hotel and Anr. – NCLAT New Delhi Read Post »

A well considered judgment does not fall within the scope and ambit of Review, Review Petition against Rainbow Papers judgment dismissed and listed 8 grounds for review of a judgment – Sanjay Kumar Agarwal Vs. State Tax Officer (1) & Anr. – Supreme Court

In the review petition against Rainbow Papers judgment, Hon’ble Supreme Court, bench comprising of Mr. Justice Ajjikuttira Somaiah Bopanna and Ms. Justice Bela M. Trivedi held that:

(i) Even a third party to the proceedings, if he considers himself to be an “aggrieved person,” may take recourse to the remedy of review petition.
(ii) Any passing reference of the judgment, which is challenged under review petition, made by the Bench of the equal strength could not be a ground for review.
(iii) Subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
(iv) The well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review.
(v) A co-ordinate Bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate Bench of the same strength.
(vi) dismissed the petition holding that the well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review.
The Hon’ble Court also listed 8 points for review of a judgment.

A well considered judgment does not fall within the scope and ambit of Review, Review Petition against Rainbow Papers judgment dismissed and listed 8 grounds for review of a judgment – Sanjay Kumar Agarwal Vs. State Tax Officer (1) & Anr. – Supreme Court Read Post »

Constitutional validity of amended Rule 8(8) of the Security Interest (Enforcement) Rules, 2002 – Sale of secured asset by private treaty can be conducted only after the sale by inviting tenders from the public or by holding public auction fails – Mr Prateek Pradeep Agarwal Vs. Union of India – Bombay High Court

The Petitioner is challenging constitutional validity of amended Rule 8(8) as it removes the requirement of consent of borrower for the purpose of settlement of terms of sale for conducting the same by obtaining quotations or by private treaty of secured assets by secured creditor/authorized officer.

Hon’ble High Court held that it is possible that as a result of the amended Rule 8(8), the sale of secured asset by private treaty can be conducted, even at the first instance, without making attempts to sell the same by public auction or by inviting public tender. Thus allowing sale by private treaty without failure of sale by method of public auction or by inviting public tender will be violative of the object of the said Act and said Rules of ensuring receipt of maximum possible price by sale of the secured asset. In that case, the said amended Rule 8(8) will become unconstitutional as unfettered and arbitrary powers are conferred on the secured creditor/authorised officer to that extent. Said amended Rule 8(8) is not per se unconstitutional. However the stage when said amended Rule 8(8) is invoked is very crucial and important. If the said Rule is invoked at the first instance, then in view of absence of public notice as public participation is denied, the same will amount to conferring unfettered, arbitrary and excessive powers on the secured creditor/ authorised officer resulting into destroying the object of the said Act and said Rules. Thus to save the said amended Rule 8(8) from unconstitutionality on the ground that unfettered and arbitrary powers are given to secured creditors/authorised officer it is necessary to read into said Rule 8(8) that sale by private treaty can be conducted only after the sale by inviting tenders from the public or by holding public auction fails.

Constitutional validity of amended Rule 8(8) of the Security Interest (Enforcement) Rules, 2002 – Sale of secured asset by private treaty can be conducted only after the sale by inviting tenders from the public or by holding public auction fails – Mr Prateek Pradeep Agarwal Vs. Union of India – Bombay High Court Read Post »

When sufficient provisions are available in the IBC especially under Sections 19, 66 and 74 of IBC to deal with the situations of non-cooperation by the Suspended Management to the RP in completion of CIRP, fraudulent trading or wrongful trading, if any, during CIRP and punishment for Contravention of Moratorium provisions of Section 14 of IBC then why he had filed FIR – Sandeep Khaitian, IRP Vs. Piyush Periwal & others – NCLT Guwahati Bench

The Adjudicating Authority holds that it has not been made clear by the RP during the hearing that when sufficient provisions are available in the IBC especially under Sections 19, 66 and 74 of IBC to deal with the situations of non-cooperation by the Suspended Management to the RP in completion of CIRP, fraudulent trading or wrongful trading, if any, during Corporate Insolvency Resolution Process or a Liquidation Process, and Punishment for Contravention of Moratorium provisions of Section 14 of IBC then why he had filed FIR on 23.04.2020 with Margherita, Police Station. The Production of the Unit is closed in the month of July, 2020.

When sufficient provisions are available in the IBC especially under Sections 19, 66 and 74 of IBC to deal with the situations of non-cooperation by the Suspended Management to the RP in completion of CIRP, fraudulent trading or wrongful trading, if any, during CIRP and punishment for Contravention of Moratorium provisions of Section 14 of IBC then why he had filed FIR – Sandeep Khaitian, IRP Vs. Piyush Periwal & others – NCLT Guwahati Bench Read Post »

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